TMI Blog1926 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... of shares in the market from various brokers, and took from these brokers blank transfers signed by the registered holders along with the corresponding certificates. These certificates and blank transfers were handed by the second plaintiff to the first defendant at 6 P.M. on the 14th April. At 8 v. M. a cheque for the sum due under the contract in favour of the first plaintiff was handed to the second plaintiff. This cheque was dishonoured on the next day. 2. The first defendant, having had the blank transfers and certificates thus delivered to him, made certain propositions as to the raising of money to Manilal, a partner in the firm of Wadilal Co., the second defendants, and handed the certificates and transfers to him. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, being a mere nominee of Manilal, Ghia was in no better position than Manilal himself. They took these shares with the infirmity from Gora, and therefore they cannot claim these shares in priority to the plaintiffs. 5. He had previously pointed out that in a question with the Company the owners of the shares were the old owners who had signed the blank transfers. 6. On appeal by the second and third defendants the learned Judges of the Appellate Division of the High Court reversed the judgment of the Trial Judge and dismissed the action as against them. They held on the facts that plaintiff No. 2 had acted as agent for plaintiff No. 1, and that consequently, as plaintiff No. 2 was not a certified broker, the buyer was not affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only an ostensible owner of the shares and the plaintiff, who was the unpaid vendor, had the equity in them, was elaborated into an argument that, according to the law of England, there would be an. equitable lien in favour of the unpaid purchaser and that that law applied. Such a view would be so far-reaching in ordinary Stock Exchange transactions that their Lordships think it necessary to emphasise their view of its unsoundness. In the first place, so far as lien is concerned, the law as to lien is statutory and is contained in the 95 th and following sections of the Indian Contract Act. Section 95 applies to this case; unless there is possession there is no lien. But, further, there seems to their Lordships a good deal of confusion aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 78 is as follows: 78. Sale is effected by offer and acceptance of ascertained goods for a price,* * * or of a price for ascertained goods, * * * together with payment of the price or delivery of the goods. 10. Here the goods were not ascertained goods at the time of the contract, for the contract was only for so many shares of Alcocks', not of any particular shares, but then Section 83 provides: 83. Where the goods are not ascertained at the time of making the agreement for sale, but goods answering the description in the agreement are subsequently appropriated by one party for the purpose of the agreement, and that appropriation is assented to by the other, the goods have been ascertained, and the sale is complete. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in cash before two. o'clock on that very day. And if the person purchasing shall fail to do so, those shares will be sold off by auction before three o'clock. * * * * 13. It was argued that the effect of this rule was to make the delivery not actual but conditional, with the result that the property did not really pass till the cheque was honoured. Their Lordships consider this argument quite unsound. The Contract Act settles that property is to pass on delivery. Delivery is a fact, and the statutory result must follow. Further, the rule cannot be read as an express stipulation in the sense of Section 121 because it does not say what Section 121 provides must be said. But in truth, in their Lordships' view, the rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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